The Cherokee Nation is among a group that filed suit against the U.S. Department of Health and Human Services and the Administration for Children and Families Thursday, in a federal district court in California, regarding data collected on children in foster care.

The group is composed of a California-based coalition of 36 tribes; two federally-recognized tribes, including CN; a foster youth and foster care alumni group; and three organizations that work with LGBTQ youth in foster care. Collectively they claim the departments unlawfully rescinded requirements of child welfare agency to report data about tribal membership and affiliation of foster children, data about sexual orientation of foster youth, and data about how agencies identify and serve American Indian children and LGBTQ youth in the foster care system.

“The Adoption and Foster Care Analysis and Reporting System is used by HHS to track foster children through foster care,” said Cherokee Nation Attorney General Sara Hill in the tribe’s Rules committee meeting Thursday. “For decades, HHS did not track any statistics that relate to the Indian Child Welfare Act with Indian children. So if children were placed in non-ICWA compliant placements in the state, the proportion of children in foster care in the United States – none of that data was being tracked by HHS.”

In 2016, HHS changed it rules to mandate reporting of how child welfare agencies track American Indian children and included data related to the ICWA. The rule also required reporting the voluntary disclosure of the sexual orientation of foster youth ages 14 and older, and of foster and adoptive parents and legal guardians.

The plaintiffs argue President Donald Trump’s administration and the ACF violated the Administrative Procedure Act by revoking the 2016 rule. The group believes the data would assist welfare agencies and organizations serving foster children, and avoid bad outcomes for children and youth.

“Cherokee Nation is the largest tribe in the country, with Cherokee children involved in foster care cases in every state,” said Principal Chief Chuck Hoskin Jr. “Requiring states to report their ICWA compliance ensures that our Cherokee children are protected by ICWA in state court systems. We were disappointed when the ICWA reporting elements were removed from the regulation and are hopeful they will be restored through this case. The Cherokee Nation will continue to lead the way when it comes to defending ICWA to protect our children.”

The 2016 requirements were rescinded in May, and without it, the group of plaintiffs argued in their suit that tribes have no idea how many of their children are in state systems, whether a court has ordered ICWA to apply to them, and whether they have been placed into non-kin or non-tribal families, despite the ICWA’s statutory placement preferences.

“In 2020, the government completely reversed course and said we’re not going to track this information anymore,” said Hill. “We believe they didn’t follow the rules – the administrative rules they’re required to follow to reverse course like that.”

The suit was filed in the U.S. District Court for the Northern District of California, where the plaintiffs are asking the court to declare the latest 2020 rule revoking the previous regulations violated the APA and the Social Security Act.

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